Vincent Isibor V. The State (1970)

LawGlobal-Hub Lead Judgment Report

LEWIS, J.S.C. 

On the 21st of July, 1969, in the Lagos High Court in Charge No. LA/13C/69, Adefarasin, J. found the accused not guilty of manslaughter but guilty of dangerous driving contrary to section 18(1) of the Road Traffic Act and sentenced him to a fine of 100pounds or six months imprisonment with hard labour, and against that conviction the accused has appealed to this Court.

Chief Williams for the appellant first argued his third ground of appeal which reads:-
“The learned trial judge erred in law in not admitting in evidence the deposition of Mr. Leigh and thereby came to a wrong conclusion on the facts of this case.”
When the 7th P.W., one Mr Oladeinde Leigh, who was the only eye-witness to the accident, was being cross-examined the record shows what took place in this regard as it reads-

“I did not see Madam Adekunbi King until after she had been knocked down.
(Akesode: I ask for leave to produce the deposition of the witness at the preliminary investigation to show what he had said at the lower court.
Alao: I do not agree.
Court: The deposition of the witness should be made available and given to Mr Akesode. I agree and I rule that where a witness made a statement at the preliminary investigation and at the trial denies it, it is proper for the defence to put in the statement for purpose of credibility. But i cannot see how the defence will put it in through this witness.

Chief Williams.- I refer to sections 104 and 114. 1 will say that we will not tender this document through the witness who says he cannot read it. We want to tender it from the Bar.

Alao.- I object to this document being produced from the Bar. I refer to sections 34 and 114 of the Evidence Act. I refer to Crown v. Majekodunmi 14 W.A.C.A. p. 64.”
The learned trial judge then gave his ruling where after referring to sections 34 and 114 of the Evidence Act he went on to refuse the admission of the deposition saying-
“It is not enough to produce the deposition from the Bar having obtained it from the clerk of the court.

Before such deposition can be admitted the circumstances upon which its admission is based must be shown to exist and this can only be done by evidence on oath unless there is statutory provision to the contrary. (See R. v. Shofoluwe 1951) W.A.C.A. 264; R. v. Isinguzoh (1959) 4 F.S.C. 4; R. v. Thomas (1945) 11 W.A.C.A.; see also Brett and McClean paragraph 853; see also R. v. Ikpe (1960) 5 F.S.c. 180; see Brett and McClean paragraph 944).
The point really is that some evidence may be that of the registrar, is required providing the basis for the admission of this document for what it appears to be on the surface of it.

Since such evidence has not been forthcoming i will not at this stage admit it. I am, of course, prepared to receive the necessary evidence and then admit the document. At this stage it may be marked “tendered but rejected.”

As no further evidence was in fact adduced the deposition was never put in.
Now it is Chief Williams’ contention that the learned trial judge was in error in refusing to allow the deposition to be put in on the request of counsel from the Bar without calling a witness to formally tender it. He relied on the provisions of section 198 of the Evidence Act which reads:-
“198.

A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

He read that section in conjunction with section 113 of the Evidence Act which reads-
“113. (1) The court shall presume every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any other officer in Nigeria who is duly authorised thereto to be genuine, provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.

(2) The court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed it, the official character which he claims in such paper.”,
And with that of sections 96(1) (e) and 96(2)(c) of that Act which reads:-
“96. (1) Secondary evidence may be given of the existence, condition or contents of a document in the following cases:-
(e) When the original is a public document within the meaning of section 108;
96. (2) The secondary evidence admissible in respect of the original documents referred to in the several paragraphs of subsection (1) is as follows:-
(c) In paragraph (e) or if) a certified copy of the document, but no other kind of secondary evidence, is admissible;”.
He then pointed out that the deposition was a public document within section 108(a) of that Act which reads
“108. The following documents are public documents:
(a) Documents forming the acts of records of the acts-(i) of the sovereign authority;
(ii) Of official bodies and tribunals; and
(iii) Of public officers, legislative, judicial and executive, whether of Nigeria or elsewhere;”.

Finally he referred us to Mozie v. Mbebie and anor. (1966) N.M.L.R. 167, but that was a High Court decision showing that the evidence given by a witness earlier before a coroner when put to him in cross-examination was admissible, and did not in our view establish how it was to be admitted. In support however of his proposition that a witness need not be called he referred us to Hearts of Oak Assurance Co. v. James Flower and Sons [1936] Ch. 76 as showing that in appropriate circumstances the minutes of a directors’ meeting could be put in without doing so through a witness by virtue of the provisions of section 120 of the Companies Act, 1929 (section 73 of the Cmpanies Act (Cap. 37 of the Laws of the Federation of Nigeria and Lagos, 1958) is the equivalent section in Nigeria).

Mr Ajose-Adeogun or the respondent submitted that we should also have regard to section 208 of the Evidence Act which reads:-
“208. A witness may be cross-examined as to previous statements made by him in writing relative to the subject-matter of the trial without such writing being shown to him, but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always that it shall be competent for the court at any time during the trial, to require the production of the writing for its inspection, and the court may thereupon make use of it for the purposes of the trial, as it shall think fit.”